Civil Rights:
Equality
An American Dilemma:
Promotion of equality
conflicts with demands
for freedom…
Definition
• Policies to protect people against
discrimination by government
• Three types of discrimination:
– Race
– Gender
– Other
Concept of Equality
• Does NOT appear in the entire Const, not
even in BoR
• Only place = 14th A’t
– “equal protection of the law” guaranteed to all
citizens
• Initially meant only “life, liberty &
property” but has expanded
Tests Used to Decide
Discrimination Cases
• 1. Rational basis test (most lenient)
– Used to decide age/ $ cases
– A law is const’al IF there is a reasonable
relationship b/the purpose of the law & a
legitimate govt objective (health, safety, etc)
– Burden of proof on the individual who
challenges the law
– Ex. airline pilots over 61 not ok… safety
– Ex. 18 year olds drinking, not ok…alcohol
accidents
• 2. Intermediate scrutiny test (used w/gender
cases)
– State must prove a relationship b/law &
objective
• 3. Strict scrutiny test (used w/race cases)
– State must prove compelling reasons for
enacting a law (ex. nat’l security, to remedy
past discrimination)
– State must have used least restrictive means
History of Race Cases
• Slavery to 1865
– Scott v. Sandford
(1857): black men, free
or slave = chattel, no
rights as citizens AND
Congress has no power
to ban slavery
– 13th Amendment
(1865) abolished
slavery
th
14
Amendment
• “All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state
wherein they reside. No state shall make or
enforce any law which shall abridge [deprive]
the privileges or immunities of the citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
Citizenship by Birth
• Jus soli- “law of the • Jus sanguinis- “law
soil”
of blood”
• If an individual is born in a
• Grants citizenship
foreign country and both
parents are US citizens, the
to nearly all people
child is a citizen if at least one
born in US or Am
parent is a legal resident of the
US
territories
• If only one parent is an
American citizen, the parent
must have lived in the US for at
least 5 years, 2 of which had to
occur after the age of 14
• Reconstruction & Resegregation
– “occupation,” state legislatures had to ratify
new amendments; no former Confederates
could hold office
– Jim Crow laws returned w/Home Rule… de
jure & de facto segregation
– Plessy v. Ferguson (1896) established “separate
but equal” (RR transportation)
Retired professor George McLaurin’s shameful
accommodation outside of the classroom when a federal
district court ordered his admission into the University of
Oklahoma’s doctoral program.
Era of Civil Rights
• Sweatt v. Painter (1950)
– Separate MUST be truly
equal
• Brown v. Board of
Education (1954)
– Unanimously ended
segregation as violation of
14th Amendment Equal
Protection Clause
– Led to bussing; Rosa Parks
1955, MLK, marches, nonviolence, sit-ins
Era of Civil Rights
• Hernandez v. Texas
(1953)
– the Fourteenth
Amendment
protects those
beyond the two
classes of white or
Negro
– Hispanics cannot be
barred from juries
Civil Rights Act of 1964
• Racial discrimination illegal in places of public
accommodation (hotels, restaurants, etc b/c
commerce clause!)
• Forbade discrimination on basis of race, color, natl
origin, religion or gender
• Created EEOC to monitor and enforce protection
against job discrimination
• Withheld federal grants from st/loc govts who
practiced discrimination
• Strengthened voting rights
The right to vote
• Suffrage was denied in a variety of
ways
– Grandfather clauses
– Poll taxes
– Literacy tests
– White primaries
– Violence and intimidation
Voting Rights Act of 1965
• Although 15th Amendment in 1870
guaranteed African-Americans the right to
vote, South used many methods to restrict
voting
• Act prohibited any govt from using any
procedure denying the right to vote on the
basis of race or color
Other Minority Groups
• Native Americans became citizens in 1924;
tribal self-rule recognized
• Hispanic-Americans = largest minority;
MALDEF modeled on NAACP
• Asian-Americans = fastest-growing
minority
– Korematsu v. US (1944): Su Ct upheld need to
protect against espionage > Fred’s rights
Women’s Rights
• Part of abolitionist movement; little other
agreement
• Seneca Falls Declaration of Sentiments &
Resolutions in 1848
– Fought “coverture” which said married
women’s identity was her husband’s… no
signing of contracts or owning property, or
right to vote
• 19th Amendment in
1920 gave women
right to vote
• Time of protectionist
laws
– Hours, overtime,
physical nature or
work also kept men
from competing
w/women for jobs
• Reed v. Reed (1971)
– First Su Ct ruling on
gender discrimination
– Must be rational!
Women in the Workplace
• EEOC protects women (not just race)
• Title IX of Education Act of 1972 forbade gender
discrimination in federally-subsidized education, including
athletics
• Pregnancy now covered in sick leave & health benefits
• Military: no draft for women, no ground combat
• US v. Virginia (1996)
– State-funded military colleges (VMI, in this case) must admit
women (not separate but =!!)
Sexual Harassment
• In 1986, Su Ct ruled
that a hostile or
abusive work
environment =
discrimination
forbidden by the Civil
Rights Act of 1964
• In 1988, ruled that
employers are
responsible for
preventing/eliminating
harassment at work,
even if management
doesn’t know about it!
Other Groups
• Age discrimination
• Disabled (today, wheelchair ramps, toilet
grab bars, Braille signs)
– Americans w/Disabilities Act 1990 required
employers to make “reasonable
accommodations” and prevents discrimination
– Ex. Casey Martin v. PGA , Lane v. Tennessee
(2004) (access to courts)
Definition of Disabled??
• AIDS?? Yes
• Epilepsy, high blood pressure, eyesight??
– Not if it can be addressed w/medication or tools
• Biggest concern = $ needed to
accommodate
Gays & Lesbians
• Not much public support to extend
protections to them, but changing
– Support for “civil unions” but not
marriage
• Clinton’s “don’t ask, don’t tell”
policy in military 1993; must
promise celibacy if “come out”
• Congress just repealed Don’t Ask
Don’t Tell in 2010
• Romer v. Evans
(1996)
– Su Ct voided a state
amendment voted on
by the population that
denied protection to
homosexuals
• Boy Scouts v. Dale
(2000)
– Could NOT allow gay
troop leaders b/c
private organization,
inconsistent w/ their
values
• Lawrence and Gardner v. Texas (2003)
– 6-3; Texas’ anti-sodomy law = violation of 14th
Amendment Due Process & Equal Protection
Clause… BUT doesn’t guarantee right to samesex marriage
Current Controversy
• 1996 Federal Defense
of Marriage Act
– Lets states refuse to
recognize other
states’ same-sex
marriages
– State laws preventing
gays/lesbians from
adopting children
Affirmative Action
• Definition
– Special attention or
compensatory
treatment to members
of previously
disadvantaged groups
• Goal
– Equal results
– NOT just equal
opportunity
– Typical means =
quotas
Freedom is not enough. You do not wipe away the scars of centuries. You do not
take a man who for years has been hobbled by chains, liberate him, bring him to
the starting line of a race saying, 'You are free to compete with all the others', and
still justly believe you have been completely fair. Thus it is not enough to open the
gates of opportunity. --LBJ
• Adarand Constructors
v. Pena (1995)
• Regents of University
of California v. Bakke
(1978)
– Race can be a factor in
admissions, but not the
factor
– No quotas
– Fed programs that
classify people by race,
even for benign
purposes, should be
presumed to be
unconst’al
• Gratz v. Bollinger (undergrad student won),
Grutter v. Bollinger (grad student lost)
(2003)
– Univ of Michigan law school
– Yes to affirmative action
– No to point system!
Do the following situations violate the 14th
Amendment’s Equal Protection Clause?
1. Due to the fact that most fast-food restaurants are robbed during closing hours,
Kouba’s Coney Dogs has a policy that does not allow women to be hired to
work the late closing shift.
2. A maximum-security prison in the state of Texas does not allow female prison
guards in its employ.
3. In an effort to reduce crime, a community passes a curfew law that requires all
persons under the age of 17 off the streets M-F between 10 pm and 5 am.
4. Ambulance service charges individual passengers $75 for transportation to any
local hospital. However, if a passenger weighs over 300 pounds, a $25 fee is
added on.
5. Kouba’s Kool House of Coffee requires that all male patrons wear a sport coat
and tie.
6. The state of Texas requires all public employees to be citizens of the United
States.
7. A university, in an effort to promote diversity on its college campus, considers
race and ethnicity when admitting students.